CAAFlog » Court-Martial News

Here is an AP news story about the arrest and indictment of Navy Captain John Nettleton – who is on active duty – for obstruction of justice, concealment of material facts, falsification of records, and making false statements in connection with a 2015 investigation into the death of a civilian employed at Naval Station Guantanamo Bay. Nettleton was the commander of the installation at the time of the death.

The nine-count indictment is available here.

In November 2017, Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was ordered confined to his quarters for 21 days by Air Force Military Judge Colonel Vance Spath, who found Baker in contempt in connection with the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole).

The contempt finding was dubious and Baker promptly filed a petition for a writ of habeas corpus in U.S. District Court for the District of Columbia. The day after the petition was filed (and two days after Baker was confined), the convening authority deferred the remainder of the confinement, resulting in Baker’s immediate release. A few weeks later the contempt finding was approved but the punishment (consisting of the confinement and a $1,000 fine) was disapproved outright.

In 2018 General Baker won reversal of the contempt finding entirely. That reversal is the #8 Military Justice Story of 2018.

District Judge Royce C. Lamberth concluded that a military judge detailed to a military commission under the Military Commissions Act (10 U.S.C. Ch. 47A) may not unilaterally punish contempt. Rather, “only a military commission acting through its regularly constituted members is authorized to convict a person of any offense under Chapter 47A,” including contempt. Baker v. Spath, __ F. Supp. 3d __, __, 2018 U.S. Dist. LEXIS 101622, *41 (D.D.C. Jun. 18, 2018) (discussed here). Accordingly:

Judge Spath acted unlawfully when he unilaterally convicted General Baker of criminal contempt and sentenced him for that contempt. He usurped a power that belongs solely to the members of the commission, voting as a body. For that reason, Judge Spath’s contempt findings must be vacated and the Court will grant General Baker’s Petition.

Id. at __, 2018 U.S. Dist. LEXIS 101622, *40-41.

Yesterday, Washington Post reporter Dan Lamothe published this report about the Grazioplene case. It provides a pretty comprehensive overview of situation that we’ve been watching for about 16 months, and begins:

For retired Maj. Gen. James J. Grazioplene, getting arrested and photographed in an orange jumpsuit in Northern Virginia this month was the latest humiliation following a lengthy military investigation in which the Army charged him with rape, only to have the case dismissed on a technicality.

For his daughter and military prosecutors, it was something else: a second chance at seeing whether a court will convict Grazioplene of rape.

Jennifer M. Elmore, 47, said in an interview that she first reported to the Army in 2015 that her estranged father had sexually abused her when she was a child. The service investigated for two years before bringing a case against Grazioplene in April 2017.

Retired Army Major General James J. Grazioplene – who last year was charged with committing rape on six occasions while on active duty in 1983-1989, but whose case was dismissed in the wake of CAAF’s decision in Mangahas – now faces prosecution in Virgina, according to this Army Times report:

Retired Maj. Gen. James Grazioplene faces three charges of incest and three charges of rape related to allegations of rape of a minor dating back to his time in service over the course of years in various locations.

Grazioplene now lives in Gainesville, Virginia. He faces charges lodged against him out of Prince William County Circuit Court.

The report notes:

Virginia does not have a statute of limitations on rape cases.

According to the county court records, Grazioplene is being charged with rape and incest after the case was heard by a grand jury earlier this month. The document lists the offense date as Aug. 1, 1987.

At the time, he and his family lived in Woodbridge, Virginia, which is in Prince William County.

Defense counsel for CDR Bryce Benson, the former USS Fitzgerald CO, filed a wide ranging motion to dismiss claiming unlawful command influence at the highest levels of the Navy (Navy Times coverage here). Navy Times reports that the motion asks for dismissal of all charges based on conduct by the CNO, VCNO, Navy JAG (Vice Admiral Crawford), and others:

In a 28-page filing punctuated by broadsides against the Navy’s top leaders, Benson’s defense attorneys take aim at both Chief of Naval Operations Adm. John Richardson and Vice Chief of Naval Operations Adm. Bill Moran for statements that blamed Benson for the June 17, 2017, disaster that killed seven sailors.

“CNO and (VCNO), in coordination with other senior Navy leaders, have so frequently blamed Commander Benson for his ship’s collision that no panel could fairly sit at his court-martial,” attorney Lt. Cmdr. Justin Henderson wrote in a motion filed Wednesday.

More to follow. Anyone that can send us a copy of the motion, please do.

Significant military justice event this week: The 6th annual Joint Appellate Advocacy Training is this Tuesday-Thursday, September 18-20, 2018 at the Rosenthal Theater, Fort Myer-Henderson Hall in Arlington, VA. Additional details here.

This week at SCOTUS: A petition for certiorari (available here) was filed in Larrabee v. United States, No. 18-306, on Friday, September 14, 2018. The petition challenges the constitutionality of court-martial jurisdiction over retired members of the armed forces who receive retired pay. The exercise of such jurisdiction was our #1 Military Justice Story of 2017.

Staff Sergeant Larrabee is a retired member of the Marine Corps who pleaded guilty to sexual assault and indecent recording (offenses that occurred after he transferred to the retired list) and was sentenced to confinement for 8 years, a reprimand, and a dishonorable discharge. All confinement in excess of 10 months was suspended pursuant to a pretrial agreement. The Navy-Marine Corps CCA affirmed the findings and sentence in 2017 (link to slip op.). CAAF granted review as a trailer to United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018) (CAAFlog case page), and then summarily affirmed in light of Dinger in August.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The 2018 term begins on October 1, 2018. The next scheduled oral argument at CAAF is on October 23, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 26, 2018.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 2, 2018.

The long-running court-martial prosecution of Marine Sergeant Hutchins, for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident, will be reviewed by CAAF for a third time.

Hutchins was first convicted in 2007 of conspiracy, false official statement, unpremeditated murder, and larceny. He was sentenced to reduction to E-1, a reprimand, confinement for 15 years, and a dishonorable discharge. The convening authority disapproved the reprimand and all confinement in excess of 11 years.

On appeal, the Navy-Marine Corps CCA reversed Hutchins’ convictions because it found that Hutchins’ military defense counsel was improperly released from the case upon his end of active duty service (decision analyzed here). Hutchins was released from confinement while the Judge Advocate General of the Navy certified the case to CAAF. But CAAF reversed the CCA’s decision in 2011, finding the release of Hutchins’ defense counsel to be harmless (noted here) (link to slip op.), and Hutchins was returned to confinement.

After CAAF’s 2011 decision, the Navy-Marine Corps reviewed Hutchins’ case for a second time, and it affirmed the findings and the sentence (noted here). CAAF then granted review (noted here) and, in 2013 it reversed Hutchins’ convictions because military investigators unlawfully reinitiated communications with Hutchins after he requested an attorney (leading to a confession that was erroneously admitted at trial) United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013) (CAAFlog case page).

CAAF authorized a rehearing, a rehearing was ordered, and Hutchins was again convicted.

During Hutchins’ second trial, the prosecution offered evidence of uncharged acts as proof of Hutchins’ plan to commit the charged acts. Some of those uncharged acts, however, were the basis for charges of which Hutchins was found not guilty at his first trial. Hutchins’ defense counsel opposed the prosecution’s tactic at the second trial, arguing that the prior acquittal barred the subsequent use of the acts. The military judge disagreed, and the Navy-Marine Corps CCA affirmed with a lengthy analysis that ultimately relied on Mil. R. Evid. 404(b) to hold that the uncharged acts (including acts implicating the acquittals) were “proof of motive, intent, preparation, plan, and an absence of mistake or accident with regard to the charges against [Hutchins], particularly conspiracy to commit murder and murder.” United States v. Hutchins, No. 200800393, slip op. at 23 (N.M. Ct. Crim. App. Jan. 29, 2018) (link to slip op.).

CAAF will now review that issue:

No. 18-0234/MC. U.S. v. Lawrence G. Hutchins III. CCA 200800393. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


Briefs will be filed under Rule 25.

In a brief memo released on Monday (available here), Secretary of Defense James Mattis asserts that the burdens of the military justice system are worth the cost:

Time, inconvenience, or administrative burdens are no excuse for allowing substandard conduct to persist.

The military justice system is a powerful tool that preserves good order and discipline while protecting the civil rights of Service members. It is a commander’s duty to use it. Military leaders must not interfere with individual cases, but fairness to the accused does not prevent military officers from appropriately condemning and eradicating malignant behavior from our ranks. Leaders must be willing to choose the harder right over the easier wrong. Administrative actions should not be the default method to address illicit conduct simply because it is less burdensome than the military justice system. Leaders cannot be so risk-adverse that the lose their focus on forging disciplined troops ready to ferociously and ethically defeat our enemies on the battlefield.

(emphasis in original). That all assumes that the behavior at issue is actually improper – under both the facts of the case and the law – rather than merely subjectively undesirable.

A reader reports that on July 6, 2018, Senior Airman Andrew Witt was resentenced by a panel of officer and enlisted members to life without the possibility of parole.

Witt’s 2005 conviction of the premeditated murder of a fellow Airman and his wife, and of the attempted murder of another Airman, earned him a death sentence. The Air Force CCA reversed the sentence – finding that Witt’s defense team was deficient in failing to investigate three areas relevant for sentencing – in United States v. Witt, 72 M.J. 727 (A.F. Ct. Crim. App. 2013) (en banc) (noted here). But the Air Force Appellate Government Division sought reconsideration and, in a dramatic reversal, the CCA reinstated Witt’s death sentence in United States v. Witt, 73 M.J. 738 (A.F. Ct. Crim. App. 2014) (en banc) (discussed here). That reversal of fortune was our #7 Military Justice Story of 2014.

CAAF then conducted a mandatory review of the case (because it involved a sentence to death), but the court limited oral argument to just two issues: Whether an en banc CCA can reconsider a prior en banc decision, and whether such reconsideration is permitted when the composition of the court changes from the first decision to the second. In a short and unanimous opinion issued in 2016 CAAF concluded that such reconsideration is allowed but that three judges who participated in the reconsideration in Witt’s case were disqualified from doing so. CAAF then set aside the CCA’s second decision and reinstated the first decision (that set aside the death sentence), remanding the case for a sentence rehearing. (CAAFlog case page).

This morning the Supreme Court denied certiorari in Bales v. United States, No. 17-1583 (CAAFlog news page).

In a decision issued today and available here, Judge Lamberth grants Marine Corps Brigadier General John Baker a writ of habeas corpus and vacates the contempt finding made by military commissions judge Air Force Colonel Vance Spath.

Our (somewhat extensive) prior coverage is available here.

Judge Lamberth concludes:

Judge Spath summarily convicted General Baker of criminal contempt and sentenced him for that criminal contempt. Contempt is an offense under Chapter 47A. But Judge Spath’s actions were unlawful because only a military commission acting through its regularly constituted members is authorized to convict a person of any offense under Chapter 47A. And a military judge is not a member of a military commission nor is he “the military commission” within the meaning of that chapter. For this reason the Court will GRANT General Baker’s Petition, issue the writ he requests, and vacate his conviction.

Op. at 27. This conclusion turns on an important difference between the contempt power of a courts-martial and that of a commission. Article 48, 10 U.S.C. § 848, (the court-martial power) begins:

A judge detailed to a court-martial, a court of inquiry, the United States Court of Appeals for the Armed Forces, a military Court of Criminal Appeals, a provost court, or a military commission may punish for contempt. . .

While 10 U.S.C. § 950t(31) (the commission power) begins:

A military commission under this chapter may punish for contempt. . .

In 2013, Army Staff Sergeant (SSG) Robert Bales pleaded guilty to the 2012 murder of 16 Afghan civilians. The case had been referred capital, and Bales’ plea avoided the possibility of the death sentence. A panel of members sentenced Bales to the maximum possible punishment of life without the possibility of parole. Our coverage of the case is available here.

The Army CCA affirmed the findings and the sentence in an opinion issued last September (link to slip op.). CAAF granted review and summarily affirmed on Feb. 15, 2018. Now Bales seeks certiorari. The petition is available here. The questions presented are:

Whether the Court of Appeals erred when it held that in a capital case, a prosecutor does not have to disclose exculpatory medical evidence in the government’s possession relating to the accused’s state-of-mind to commit 16 homicides where the United States ordered the accused to take mefloquine, a drug known by the U.S. Food and Drug Administration and the U.S. Military to cause long-lasting adverse psychiatric effects, including symptoms of psychosis that may occur years after use.

Whether the Court of Appeals erred when it held that in a capital case, a prosecutor does not have to disclose mitigating impeachment evidence in the government’s possession that Afghan sentencing witnesses flown into the United States left their fingerprints on bombs and improvised explosive devices, especially where the prosecution held the Afghan witnesses out to the jury as innocent “farmers.”

Last month, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF held that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years.

Applying that decision, a military judge has dismissed the charges of rape of a child preferred against retired Army Major General James J. Grazioplene. Those charges were part of the #1 Military Justice Story of 2017 – Exercising court-martial jurisdiction over retired members.

The Army Times reports here:

The alleged abuse included sexual intercourse, molestation and fondling of the alleged victim on multiple occasions, beginning as young as age three.

U.S. Army Circuit Judge Col. Daniel Brookhart noted in his March 23 ruling that at the time of the alleged offense there was “no unique UCMJ article criminalizing the rape of a child.”

“…the age of the victim was not an element of the offense and bore no impact on the punishment authorized in the statute,” Brookhart wrote.

That wouldn’t have stopped Grazioplene from being charged on this allegation, though, because the broader crime of rape under UCMJ at the time could have result in a death penalty. And with the death penalty as a punishment, there was no statute of limitations after 1986.

The first three charges on the six-charge sheet fell under a three-year statute of limitations from before 1986 and were tossed out at a January hearing.

Brookhart then had to rule on the final three charges, which fell in a period from 1986 to 1989, in which rape could be punishable by death and had no statute of limitations.

However, U.S. case law later deemed it unconstitutional to execute someone for adult rape. The U.S. case law and UCMJ punishments both remained in place and at odds until 2008, when military law was changed to remove the death penalty.

Military courts had stood by previous precedent though, allowing cases that previously had no statue of limitations to continue to be charged.

But in February, the Court of Appeals for the Armed Forces, or CAAF, ruled against precedent, setting the statute of limitations on rape cases at five years.

The Army Times report also includes some inflammatory statements from a civilian attorney representing the alleged victim:

The alleged victim’s attorney, Ryan Guilds, told Army Times that his client is one of the strongest sexual assault survivors he has ever met, and “it’s really a shame that the justice system failed her.”

“The important thing to understand from the court’s ruling is it doesn’t have anything to do with the truth of what happened to a little girl from the age of three to 18,” Guilds said. “Or anything to do with the monster who violated not only his duties as a man and a human being but as an Army officer.”

When we last looked at the the ongoing habeas litigation involving Marine Corps Brigadier General John Baker (chief of the Military Commissions Defense Organization) who was found in contempt by Air Force Colonel Vance Spath (chief judge of the Air Force and a judge on the military commissions) – the #6 Military Justice Story of 2017 – it was to consider a renewed request for habeas and a motion by commissions prosecutors to obtain the audio recording of the related commission hearings.

Since then the DOJ filed a response (available here) to Baker’s renewed request, and Baker filed a reply brief (available here).

While the DOJ’s response leads with arguments that the habeas petition is now moot and that Baker failed to exhaust administrative remedies, both of these new briefs give real attention to what I believe is the most important issue in this case: whether Baker’s conduct actually constitutes contempt as the term applies to the Guantanamo commissions. As I discussed here and here, the contempt power of the Guantanamo commissions was narrowly defined by Congress and Baker’s conduct does not clearly (or even remotely, I think) meet that definition.

The DOJ’s brief, however, significantly misinterprets the hierarchy of rules in the military justice system and thereby reaches the opposite conclusion.

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An interesting development in the ongoing habeas litigation involving Marine Corps Brigadier General John Baker (chief of the Military Commissions Defense Organization) who was found in contempt by Air Force Colonel Vance Spath (chief judge of the Air Force and a judge on the military commissions).

Miami Herald reporter Carol Rosenberg reports here that commissions prosecutors filed a motion to release the audio of the commissions proceedings on October 31 and November 1, 2017. The allegedly (but not actually, as discussed here) contemptuous actions of General Baker occurred on October 31, and the contempt hearing itself (where General Baker was not allowed to defend himself) occurred on November 1. The motion to release the audio is not yet available on the commissions website, but Rosenberg has a copy and posted it here. It states, in part:

It is the Prosecution’s recollection that, on 31 October 2017, during the course of Brigadier General Baker’s refusal to obey the Commission’s lawful orders he scoffed and audibly laughed in a contemptuous manner in response to the clear orders given by the Commission to rescind his release of defense counsel. This behavior, coupled with failure to approach the podium when addressing the court and his refusal to take the witness stand when called by the Commission, was consistent with his general deportment of defiance and disrespect before the Commission throughout the proceedings.

Mot. at 3.

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